Recent lawsuits have revised the debate over strategic lawsuits against public participation in B.C. Yet many of the cases that some call SLAPPs would not be covered by typical SLAPP laws in the U.S. and elsewhere

OTTAWA–Society’s rich and famous, from Oprah Winfrey and Jay Leno to the shareholders of Louis Vuitton, are among the many around the world who have been faced with so-called SLAPP lawsuits.

But while the wealthy have the financial means and often helpful laws to fight a strategic lawsuit against public participation, targets of alleged SLAPPs in B.C. have a limited ability to defend themselves.

SLAPP suits are typically based on weak legal grounds and are intended to silence critics rather than to win a hefty judgment. And more often than not they’re aimed at those who can’t afford a drawn-out legal battle.

Two recent cases have set off a new debate over whether B.C. should revisit Liberal premier Gordon Campbell’s 2001 decision to scrap a months-old anti-SLAPP law. The law had been passed during the dying days of the New Democratic Party government.

At the time the Liberals argued that such a law, the first of its kind in Canada, was both unnecessary and would lead to a ”protest culture” in B.C.

It gave judges the power to quickly dismiss certain lawsuits aimed at stifling free speech, with hearings taking place no more than 60 days after a complaint under the anti-SLAPP law was filed. It allowed judges to award costs and impose damages, to be paid by the party that launched the unwarranted legal action.

The bill set tough standards to prove a case was a SLAPP, but also recognized that protesters had ”qualified privilege” to speak out in a way ”prejudicial” to the offended party–as long as there was an absence of malice.

The five defendants trespassed and ”wrongfully and without excuse entered upon the Burnaby lands, and physically obstructed, impeded, interfered with and thereby prevented” Trans Mountain from conducting its fieldwork, according to the statement of claim, which also accused the group of being engaged in a conspiracy to stop the company’s work. The protests had targeted the company’s National Energy Board-sanctioned preliminary work on its proposed $5.4-billion oilsands pipeline expansion.

Trans Mountain insisted it was a legitimate legal action and not a SLAPP suit.

But late last month, the company formally abandoned the lawsuit against all five, saying that while it had lost money because of the protests, it wanted to act in the interest of conciliation.

The second involves a B.C. company’s lawsuit against an environmental group, alleging defamation for statements about possible negative effects of Taseko Mines Ltd.’s proposed mine near Williams Lake. Taseko, which didn’t respond to an interview request, clearly believes in the legitimacy of its suit, as the case against Wilderness Committee has been before the courts for two days of testimony and cross examination.

Lawyers for each side will meet again to give their final arguments at the end of March, said Joe Foy, the environmental group’s national campaign director. He said the group had never been sued for defamation before.

Experts consulted by The Vancouver Sun said it’s often difficult to determine whether or not a lawsuit is a SLAPP. Only judges who have a chance to hear and weigh evidence from both sides, and balance a plaintiff’s right to sue with the public interest, can determine if a fine line has been crossed.

And the very threat of a SLAPP discourages speculation.

“Canada is considered to have some of the most plaintiff-friendly defamation laws in the English common law world,” said University of Victoria law professor Chris Tollefson. ”Anyone calling a suit a SLAPP suit risks being hit with a SLAPP.”

The controversy over the two cases has acted as a reminder that B.C. was once, very briefly, a pioneer in the area.

“It’s a real shame (that the law was repealed), especially considering B.C. was the first Canadian province to have actually adopted an anti-SLAPP bill,” said Normand Landry, a University of Quebec professor and author of Threatening Democracy: SLAPPS and the Judicial Repression of Political Discourse. “It actually was a very influential bill both in Canada and elsewhere in the world. It became a blueprint.”

Quebec is the only province with such legislation, enacted in 2009. Ontario’s Liberal government is pushing through its own bill even though Ontario’s business community, like Quebec’s, argues that the law is unnecessary and troublesome.

More than 30 U.S. states have anti-SLAPP legislation. There is also an anti-SLAPP statute in Australia.

Experts say it’s almost impossible to declare any case a SLAPP at the outset. Laws vary considerably, and judges must consider both the intent of the plaintiff and the broad impact of the lawsuit on public debate. And there are even disagreements on how to define the term.

”It’s really in the eye of the beholder,” said lawyer Marko Vesely, who questions the need for an anti-SLAPP law. He is a partner at Vancouver-based Lawson Lundell, one of Canada’s top corporate law firms.

Anti-SLAPP laws began in the highly litigious U.S. after two American academics wrote in the late 1980s about what they considered a rising tide of lawsuits aimed at stifling public debate.

One of the best-known examples was the $12 million US lawsuit filed by Texas cattlemen against Oprah Winfrey in 1996, after she declared during a broadcast on mad cow disease that shed never eat another hamburger. She won the case even though Texas didnt have an anti-SLAPP law.

In 2006, both Leno and Louis Vuitton used California’s law to get dismissals of frivolous legal claims.

The most prominent B.C. case took place in 1992 after MacMillan Bloedel launched a lawsuit against local authorities on Galiano Island opposed to the company’s development plans. Though the Galiano Conservancy Association successfully fought the suit, ”the case took a toll on the organization, diverting its time and efforts away from the real dispute,” Tollefson wrote in a 2010 paper. He noted that the price the conservancy paid would have been much higher had the Sierra Legal Defence Fund, now Ecojustice Canada, not provided free legal help.

Supporters of an anti-SLAPP law for B.C. said it would help prevent corporations from intimidating individuals and citizens groups.

But Lawson Lundells Marko Vesely argues it would be “a solution in search of a problem.” He said Canadian judges already have the power to dismiss frivolous suits, and agrees with former B.C. Attorney General Geoff Plant that such a law encourages a “protest culture.”

But other experts say judges typically don’t throw out cases unless they’re blatantly without merit, and even then they often don’t award full costs to defendants.

Josh Paterson, executive director of the B.C. Civil Liberties Association, said judges need to be given explicit direction from legislators to consider the public interest.

”There needs to be a statute to specifically allow them to look at the public effects on freedom of expression.”

But experts also said it’s unclear whether B.C.’s 2001 SLAPP law would have provided any help to the Burnaby Mountain protesters, since the law and most others SLAPP laws around the world generally focus on free speech and do not provide protection for those engaged in civil disobedience.

Eric Goldman, a professor at the Santa Clara University School of Law in California, said none of the 30-odd U.S. states with SLAPP laws would protect someone breaking the law or violating a court order.

Ontario’s new law, however, might lay the groundwork for a broader definition, according to Ramani Nadarajah, a lawyer with the Canadian Environmental Law Association. She pointed to its broad definition of ”expression” as ”any communication, regardless of whether it is made verbally or non-verbally.”

“So I think people who are engaged in civil disobedience would be able to seek protection under the bill.”

Paterson, of the B.C. Civil Liberties Association, said his organization never advocates law-breaking.

But he expressed concern over the now-abandoned Trans Mountain suit, which alleged that defendants were engaged in a conspiracy to block work on Burnaby Mountain. He said an anti-SLAPP law should help people who face suits for merely talking about standing in front of bulldozers.

”People should be free to say those things and not be threatened with a lawsuit.”

Often, high-profile alleged SLAPPs would clearly not be covered by typical anti-SLAPP laws.

Fish farm protester Don Staniford, for instance, claimed he was a SLAPP victim when he was sued by Mainstream Canada, now Cermaq Canada, for defamation. B.C.’s largest salmon-farming firm was responding to Staniford’s Internet campaigns alleging that farmed salmon was as dangerous as smoking cigarettes.

B.C. Supreme Court Judge Elaine Adair ruled in 2012 in favour of his fair comment defence, based on her conclusion that he honestly meant what he said even though his allegations were both defamatory and malicious. But that decision was reversed in the B.C. Court of Appeal in 2013, and last year the Supreme Court of Canada refused to hear Staniford’s appeal.

“I wouldn’t support an-anti-SLAPP law that provided full legal protection to erroneous statements of fact, made recklessly or carelessly,” Tollefson said.

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From: Alan Dutton, Burnaby Residents Opposing Kinder Morgan
To: Burnaby Now
Date: February 5, 2015
Subject: Re: Kinder Morgan drops suit against protestorsDear Editor:Based on a Trans Mountain news release of January 30, 2015, the Burnaby Now reported that the subsidiary of the Texas-based Kinder Morgan oil company is dropping its multimillion-dollar civil suit against all five Burnaby Mountain protestors and is willing to pay their costs.However, Trans Mountain’s news release must be read with a good deal of caution. While Trans Mountain promises to pay the costs of defendants, the company does not specify what costs will be compensated. Court regulations require plaintiffs that unilaterally discontinue a civil suit to cover only a small fraction of the court costs of defendants as punishment. In the case of Trans Mountain’s civil suit, costs will likely amount to just few thousand dollars. The small amount of compensation is nowhere close to the tens of thousands in legal fees required for defense against the civil suit, nor does it cover damages and lost time to defendants.

In addition, Trans Mountain’s promise to drop its civil suit offers little finality. Trans Mountain issued a unilateral Notice of Discontinuance not a Consent Dismissal Order. A Consent Dismissal guarantees that the plaintiff (Trans Mountain) cannot sue the five defendants again on the same facts. A simple discontinuance allows the Trans Mountain to bring another lawsuit against any or all of the defendants.

Two of the five defendants already had accepted a discontinuance without costs in mid-December. Two of the three remaining defendants had rejected Trans Mountains offer to discontinue without costs and without finality. Those two wanted finality and costs and were fighting for a Consent Dismissal.

As the fifth and final defendant, I rejected both the offer of discontinuance and a consent dismissal order. I took Trans Mountain to court in January to argue for a more comprehensive dismissal with costs and damages on the basis that Trans Mountain’s civil suit was a SLAPP suit. SLAPP stands for strategic litigation against public participation, and such suits are used by large corporations to silence their critics and prevent them from protesting, thus denying fundamental democratic rights. The Judge decided not to strike the claims on the basis of court rules, which require an extremely high threshold to be met on application to strike at this preliminary stage.

I was on the verge of launching an appeal when Trans Mountain unilaterally issued a Notice of Discontinuance that protected the company from further court action against the civil suit. Meanwhile, all the allegations of conspiracy, assault, etc., and damage to my reputation and wasted time are left hanging.

What have we learned from Kinder Morgan’s lawsuit and promises? A very intelligent woman named Sue explained to me via social media that the whole point of a SLAPP suit is to bring a lawsuit to make the little guy spend lots of time and emotional energy and money, and then drop it before it can come before a court of law where, in this case, the transnational would have to prove their allegations of conspiracy, etc. The transnational drops the SLAPP suit before it can go to court so that the threat of reviving the lawsuit continues to hang over the little guy. The transnational has to pay a portion of their funds to keep the suit alive, but it’s a small investment. As a portion of the little guy’s funds, however, it is huge. This is why anti-SLAPP suit legislation is so important in a democratic country like Canada. It’s the only way the big guys can be penalized for using the law in this way to silence their critics and stop protests. Thank you Sue!

This is why I refuse to settle, stay quiet or stop legal action and why I am fighting for anti-SLAPP legislation in B.C.

Burnaby Mountain Warrior? It only takes one. And Alan Dutton, a retired professor, certainly takes that title in my opinion. He is the only one with the guts and the ability to stand up to what has been a conspiracy between the courts of this province, the resource extraction corporations and both provincial and federal governments. What do I mean by conspiracy?

Because all three of the above conspire to facilitate the use of injunctions to impose the intellectually conniving perceived rights of corporations over the natural rights of the earth and Her inhabitants. When citizens try to stop an obvious harm to land, waterways and habitat for all living things, the corporations turn to the courts. They know the B.C. courts are their friends. Most judges in B.C. were corporate lawyers before becoming judges. They are used to fighting for the artificially perceived rights of death dealing corporations rather than the natural rights of living things to clean water, food, and air to breathe.

But what are these injunctions? Most people know that in some way injunctions make people stop protesting a contested area like Burnaby Mountain, and some even know these injunctions are precipitated by something called SLAPP suits. What is a SLAPP suit? When I heard the actual legal title I was astonished. SLAPP stands for Strategic Lawsuit against Public Participation. How anti-democratic! And blatantly anti-public! And anti-everything except the rights of courts, governments and the corporations they serve. However, with a copy of a SLAPP suit in hand to show they have civilly sued a protester, the corporation can take this back to the court and ask for an injunction (or even before the suit is filed). The judge will most certainly give the corporation the injunction requested (they refuse so rarely it isn’t even worth mentioning) et voila!

Now anybody who steps up to try to block any bit of the corporation’s right to do whatever they chose to do to an area will now be breaking a judge’s order.

The court seems to be taking a slightly different tack with Burnaby Mountain protesters than they did with me in the logging protests; instead of the humiliating demand for an apology to the court that I refused, the protesters are agreeing to some sort of settling out of court. Except for Mr. Allan Dutton, who is refusing to settle and is challenging the right of the courts to give out injunctions instead of using the Canadian Criminal Code to deal with protesters.

Okay, so how would that fix things if the Criminal Code was used instead? The Criminal Code has instructions for just about any crime or misdemeanour one can think of. Blocking a road is against the law. So is refusing to move when a police officer commands it. So the police would simply arrest whoever was breaking the law. And then in court a protester could have an actual trial where the contest would be between the protester and the corporation instead of between the protester and the judge for breaking the judge’s order. That’s why the corporations so love injunctions.

The protester can’t argue in court his or her reasons for trying to stop a destruction of the earth when one is arrested under an injunction. There is no defence for breaking a judge’s order. The question just becomes one of if the protester knew about the injunction and if he or she broke the injunction by refusing to move. That’s it. That is what the Strategic Lawsuits Against Public Participation (SLAPP suits) culminate in, injunctions and humiliating retreats for the protesters.

Except occasionally, for whatever reason, a protester will refuse to retreat. Like Alan Dutton.

This resounds among the populace. It’s heartwarming. It’s hopeful. Courage is inspiring and it’s also contagious.

Alan Dutton, I understand, is to be back in the courtroom Jan. 19. I wish I could be there. Those of you who can, will you please attend and bear witness? And report the results? A warrior is going to be on the stand.

A failed two-day court challenge to an anti-democratic, corporate legal attack is the latest chapter in the 2014 Battle of Burnaby Mountain over the Kinder Morgan tar sands pipeline expansion project.

The B.C. Supreme Court ruled January 14 that stifling Alan Dutton’s right to protest was not the primary purpose of a multi-million-dollar civil suit and, therefore, his application for a summary dismissal of the case was denied. In an unexpected additional blow, he was ordered to pay the company’s costs for the action.

As revealed in an wide-ranging interview with the Vancouver Sun, the setback has left Dutton unbowed.

A retired academic and active member of Burnaby Residents Opposing Kinder Morgan (BROKE), Dutton has indeed been an active protester in the anti-pipeline battle. His challenge sought judicial recognition that he became a victim of strategic litigation against public participation (SLAPP) when he and four other defendants were sued October 30 by KM.

With the support of fellow BROKE members Dutton filed his mid-December application for a summary judgment to include dismissal of Kinder Morgan’s damage claims and an “Order for special costs payable by the Plaintiff to the Defendant.”

In its suit, the energy giant accuses the defendants of conspiracy to commit illegal acts of trespass, nuisance, assault, intimidation and intentional interference with contractual relations. Their acts, the claim says, resulted in “unlawful interference” with “field studies” required by the National Energy Board’s (NEB) review of the expansion project.

A related Kinder Morgan court document projects that each month of delay would cost the company $5,643,000 in expenses, as well as $88 million in lost revenues.

Dutton vows to appeal the court’s ruling, if there are grounds to do so. “I never committed any of the alleged conspiracy, assault, trespass, etc.,” he told this writer. “The charges against me were never proved and don’t have to be under the rules the court followed. Those rules disadvantage and silence defendants in the face of huge lawsuits by large corporations.”

Just before Christmas the energy transnational offered to “discontinue” the suit if defendants agreed not to claim costs. That deal was taken by the other four defendants, whose legal expenses had been paid by an enthusiastic public response to an on-line crowdfunding appeal.

Now, it is not so clear the deal actually settled the suit. A lawyer to two of those defendants barged into the Dutton hearing and was finally permitted to address the court. He expressed his clients’ unease that a discontinuance of the lawsuit was not as final as a dismissal and left them open to further action.

Dutton declined Kinder Morgan’s deal in order to fight the suppression of free speech and freedom of assembly, which he sees as the SLAPP suit’s real goal.

“The issue here is our democracy and the fundamental right to protest,” Dutton told the Burnaby NOW. “It’s to show people we can fight big multinational corporations, and we can be successful.”

On the first morning of Dutton’s application hearing, B.C. Civil Liberties Association Executive Director Josh Paterson, held a press conference with Dutton’s lawyer Neil Chantler. Paterson told reporters that Dutton “is basically making the argument that the reason for which this lawsuit is brought is actually improper and was to shut down people’s lawful and democratic expression.” The BCCLA also put out an “advisory” on the case.

Hoping his action would discourage future SLAPP suits and help bring anti-SLAPP legislation back to B.C., Dutton accepted that he could face growing legal expenses. Crowd-funding and other donations had covered most of his legal costs before this week’s hearing. But this challenge and the court’s unexpected turn-about on awarding costs have added thousands more in legal expenses.*

Kinder Morgan ‘s suit came after a two-and-a-half year battle against its plan to “twin” a 60-year-old pipeline not designed for, but now carrying, tar sands diluted bitumen through Burnaby to a supertanker marine terminal on the municipality’s northern border.

Kinder Morgan ‘s latest revision to the intended route for the “twinned” pipeline has it tunneling under Burnaby Mountain, home of SFU and of a large municipal conservation area.

Kinder Morgan ‘s expansion project would triple the bitumen being piped through suburban Burnaby to nearly 900,000 barrels per day. It would also triple — to five million barrels — the storage capacity of a tank farm on the side of Burnaby Mountain (uphill from residential neighbourhoods, schools, parks, etc.). And it would increase seven-fold, to 400 loads a year, the super-tanker traffic under two bridges across the narrow, busy Burrard Inlet, which is flanked by Vancouver and four other cities in addition to Burnaby.

Opposition to the project has centred on concerns about climate change, as well as about spills on land (already happened) and water, toxic fumes from the marine terminal and tank farm, fire and leaks from the latter (with no response plan in place), and earthquakes affecting the tunneled pipeline section.

Burnaby-Douglas NDP MP Kennedy Stewart has been a steady, engaged and persuasive voice against the Kinder Morgan expansion, while Burnaby North Liberal MLA Richard T. Lee has been living on another planet.
Burnaby Mayor Derrick Corrigan and his entire city council have held and attended several public meetings explaining their objections in detail.

In addition, the city fought several losing court battles to stop Kinder Morgan work on Burnaby Mountain. Those activities resulted in a September opinion poll that revealed an astonishing 93 per cent of citizens were aware of the Kinder Morgan expansion project and 68 per cent of those were opposed. Affirming this result was Corrigan’s November 15 re-election to a fifth term with 68.5 per cent of the vote and a three-peat of his party’s sweep of council seats.

BROKE, through holding community meetings and rallies and through its website, has worked diligently to educate and mobilize the community against the project since it announcement in 2012.

This past summer and fall, another small group calling themselves “caretakers” came together on the mountain to provide vigilant patrols of areas where Kinder Morgan crews were expected to work. As the fall unfolded, another layer of “land defenders” formed around the “caretaker” nucleus.

In late October, some protestors came into confrontation with a crew of contractors hired by Kinder Morgan to do work at several sites on and around Burnaby Mountain. This led with startling rapidity to the lawsuit and an application to B.C. Supreme Court for an injunction barring protesters from several areas on and around the mountain.

That injunction, which the B.C. Supreme Court did grant, gave birth to a pair of 24/7 work camps ringed by police. It also drew hundreds of protesters to the mountain day after day. Between November 19 and 27, over 100 people “crossed the line” into no-go zones ordered by the court and were arrested, only to have their contempt-of-court charges thrown out when Kinder Morgan revealed it had given the court the wrong GPS coordinates to designate the no-go zones.

Meanwhile, various other constitutional and procedural challenges to the Kinder Morgan project and to the NEB review process of it have been launched by the City of Vancouver, by the Tsleil-Waututh Nation, by a citizens group and by Robyn Allan, an economist and former president and CEO of the Insurance Corporation of BC who has become a formidable anti-pipeline crusader.

Dutton pledges to continuing the fight and is still committed to new anti-SLAPP-suit laws, “a fight both the BCCLA and West Coast Environmental Law have indicated they would support,” he said.

Gene McGuckin is a resident of Burnaby who worked for 29 years in a Burnaby paper recycling mill. He is a member or BROKE and of the Vancouver Ecosocialist Group.

*In an email to this writer Dutton emphasized that a new fundraising effort is underway, again primarily through crowd-funding.

VANCOUVER — A Burnaby, B.C. man argued in court on Tuesday that a multi-million-dollar lawsuit filed by Kinder Morgan’s Trans Mountain Pipeline is an attempt to stifle democratic activities.

Alan Dutton, a member of Burnaby Residents Opposing Kinder Morgan Expansion and a defendant in the $5.6-million lawsuit seeking damages against the protesters, is refusing to settle out of court.

In B.C. Supreme Court on Tuesday, Dutton said the case was an abuse of process and highlighted the need for anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation.

Josh Paterson, the executive director of the B.C. Civil Liberties Association, said it’s up to the defendant and his counsel to prove that the lawsuit filed by Kinder Morgan was a strategic lawsuit against public participation.

“From our perspective, we’ve said that there needs to be legislation in this province that makes it easier and faster for so-called SLAPP lawsuits to be identified and disposed of,” he said.

Paterson said the province had legislation in place until 2001 that expedited the court’s determination as to whether a case was a SLAPP suit.

The BCCLA is calling on the province to reinstate such legislation.

While B.C. Minister of Justice Suzanne Anton was unavailable for an interview, a ministry spokesperson said the province “is in line with most Canadian jurisdictions which do not provide for what is sometimes described as ‘anti-SLAPP’ legislation.”

“The challenge with such legislation is determining the basis for dismissing a civil claim prior to a hearing on its merits,” the spokesperson wrote in a statement.

The decision on whether a case is legitimate or not is up to the court’s discretion, according to Section 18 of the Supreme Court Act, which outlines general criteria for what constitutes a frivolous claim.

Trans Mountain deferred comment about the court case until it is officially concluded.

There is a reason why Hollywood legal thrillers always cast the big company as the defendant and never the plaintiff in lawsuits: there is nothing romantic about being sued by a company with deep pockets. There are no opportunities to bang the table and demand the truth; no vindication through articulate and impassioned speeches to the court; and most importantly for an activist, no chance of a victory on the substantive issue that instigated the lawsuit in the first place. In most cases, victory for a defendant in a strategic lawsuit against public participation (or a “SLAPP” as they are commonly known) is pyrrhic: a no cost settlement that leaves you no further ahead and much poorer than when you began.

A SLAPP is a lawsuit (or threat of a lawsuit) used mostly by private interests to intimidate opponents into silence or acquiescence. In the Canadian context, SLAPPs have reportedly been used to silence dissent on a wide range of issues, including environmental practices, zoning by-laws and consumer complaints. The purpose of the SLAPP is not normally to win an actual legal victory, but to change the channel on an issue by putting individual citizens and public interest groups on the defensive. A SLAPP moves the fight into the legal arena where corporate Goliaths have a massive advantage which they can exploit to suppress criticism and ultimately discourage activism. Lawsuits are almost always a painfully slow, technical and expensive process that favours those with greater resources and even if successful, a defendant will rarely recover more than a third of their actual legal costs. As the proceeding drags on and expenses mount, the pressure to capitulate and reach some form of settlement can be overwhelming.

While a SLAPP can take many forms, the most notorious cases involve allegations of defamation, interference with economic relations, and conspiracy. Such lawsuits usually seek both monetary damages and injunctive relief. They can be effective because the legal system is not designed to efficiently screen lawsuits for improper motives. While a lawsuit brought for purposes other than the assertion of legitimate rights is undoubtedly an abuse of the court’s process, judges are generally reluctant to exercise their inherent jurisdiction to dismiss abusive litigation, except in the clearest of cases.

The rules of civil litigation in most Canadian jurisdictions do provide mechanisms to attack abusive lawsuits at an early stage of the legal process, such as the rules in British Columbia for summary trial or the striking of a pleading that discloses no reasonable claim or is unnecessary, scandalous, frivolous or vexatious. While such procedural safeguards are conceptually sound, in practice it is extremely difficult to dismiss a claim using summary procedures if the court is being asked to resolve complicated issues and conflicting evidence.
Striking a claim for being unnecessary, scandalous, frivolous or vexatious is only really possible where it is plain and obvious the case is sure to fail. In both cases, the instigator of a SLAPP can gain an almost insurmountable advantage by initiating proceedings that are factually complex and involve multiple causes of action. Like an unrelenting game of whack-a-mole, the lawsuit does not end unless the defendant can effectively knock down all of the allegations.

Starting unjustifiable litigation is itself a ground for a lawsuit in Canada. The tort of abuse of process occurs where a legal proceeding is commenced with the predominant purpose of furthering some indirect, collateral and improper purpose outside the ambit of the litigation. Unfortunately, the tort of abuse of process is of little assistance to most defendants in a SLAPP. First, the intention to silence a critic through a lawsuit is not, in and of itself, an improper purpose in a defamation lawsuit.
Second, even where a defendant in a SLAPP and commences a counterclaim for abuse of process, the decision there may be delayed until the resolution of the SLAPP itself. In other words, there is very little chance to explore a plaintiff’s motives in the midst of being sued.

This point was recently confirmed by the British Columbia Supreme Court in a lawsuit that some commentators have labelled a SLAPP. In Canwest Mediaworks Publications Inc. v. Horizon Publications, Canwest commenced a lawsuit to enforce its intellectual property rights after the publication of a mock edition of the Vancouver Sun. The parody mocked the Sun’s coverage of the Israeli Palestinian conflict, which has previously received criticism for a perceived lack of balance.

The defendant Gordon Murray alleged in his defence that the true purpose of the lawsuit was not to protect intellectual property but to stifle expression of a contrary point of view on that issue. In effect, Mr. Murray characterized the lawsuit as a SLAPP. The court ultimately agreed with Canwest that its motives for bringing the lawsuit are irrelevant to Canwest’s intellectual property infringement claim and explained that the “mere assertion in a statement of defence that a lawsuit is an abuse of process does nothing more than assert — in an inappropriate, overly-polemical manner — that the plaintiff’s claim is without merit. It has no place in a [defence].”
While the Canwest suit, which remains ongoing, may indeed strike some readers as a SLAPP, it also nicely illustrates the difficulty for SLAPP defendants and judges confronted by such lawsuits. Canwest has the same right as anyone to enforce its intellectual property and unless it is plain and obvious that a claim has no merit, no one should be deprived of the opportunity to prove their case at trial. The difficulty facing ordinary citizens and public interest groups, however, is that by the time a trial is finished the damage may already be done.

Note: Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.